March 9, 2011

Why We Just Won't Fund Legal Aid

The Public Commission on Legal Aid in British Columbia, which I wrote about here, has issued its final report, called Foundations For Change.  In the report, Commissioner Len Doust, Q.C. makes seven key findings:

  • The legal aid system is failing needy individuals and families, the justice system, and our communities.
  • Legal information is not an adequate substitute for legal assistance and representation.
  • Timing of accessing legal aid is key.
  • There is a broad consensus concerning the need for innovative, client-focused legal aid services.
  • Steps must be taken to meet legal aid needs in rural communities.
  • More people should be eligible for legal aid.
  • Legal aid should be fully funded as an essential public service.
Few of these findings will be news to anyone who has experience with the legal aid system in BC.  However, the report also makes several damning statements about the current state of the legal aid system:

"While the social costs of the lack of legal aid in essential matters are difficult to measure precisely, a clogged, inaccessible system of justice necessarily results in unfair and arbitrary outcomes, often accompanied by human tragedy, and breeds contempt for the justice system and the rule of law."

"Furthermore, no other province or territory in Canada, other than British Columbia, has made such drastic reductions to its legal aid budget while coping with the same fiscal environment. In fact, Ontario has managed to increase its contribution to legal aid during the same lean economic years."

report has been criticized for focusing too much on anecdotal evidence and too little on practical solutions.  However, as my grandmother used to say, you can't make a silk purse out of a sow's ear.  What the legal aid system needs, not just in British Columbia, but across the country, is an injection of cold, hard cash.  By Doust's estimate, B.C. alone needs an additional $47 million to meet the basic needs of low-income residents.  The Legal Services Society's (LSS) budget is currently just $80 million.

The problem is one of perception and priorities.  The public perceives legal aid clients as unsympathetic criminals undeserving of help.  In turn, the public and their chosen politicians prioritize the need for legal aid below other social programs such as education and health care.  While legal aid supporters frequently lament its inadequate funding (and I'm no exception), the truth is that funding would increase if the public considered it a significant priority.

Of course, the public's perception of those who need access to legal aid is deeply flawed.  Set aside for the moment the merits of defending those accused of serious criminal offences (and in my view there are many).  The system's failing is more accurately captured by those it turns away.  As a volunteer, I took on some of the cases which were not covered by the LSS's stringent eligibility requirements, typically those involving low-income housing, first-time offenders, employment problems and family law issues.  

In my view, one of the most gaping holes in the legal aid system is the lack of support for family law cases involving children.  Many of the pro bono cases I handled involved obtaining child support orders for mothers who were, without exaggeration, struggling to house and feed their children.  The organizations I worked with were unable to match even a fraction of these cases with volunteer lawyers.

From a financial, social policy or moral perspective, it makes no sense to me that these situations are excluded from legal aid coverage.  From a purely fiscal standpoint, it stands to reason that a modest investment of legal aid funding in this area would save the government exponentially more dollars in health care, education, welfare and other social costs resulting from thrusting children into poverty.

Like so many other public policy issues, legal aid reform depends on us prioritizing the short term cost of doing the right thing over the debilitating longterm cost of doing the wrong thing.  

1 comment:

  1. The same could be said for legal aid everywhere in Canada. Change the reference to BC and plug in any other province. This is a challenge that needs solutions rather than simply highlighting the problem.

    Why not discuss possible revenue creators for legal aid such as taxing legal services by an additional percentage? Maybe the Law Society could add a surcharge for legal aid?

    Let's really have a discussion.


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